Ex parte Payne

• Decision Date: 17 January 1901
• Citation: 29 So. 622,130 Ala. 189
• Parties: EX PARTE PAYNE.
• Court: Alabama Supreme Court

29 So. 622

130 Ala. 189

EX PARTE PAYNE.

Supreme Court of Alabama

January 17, 1901

Application by W. H. Payne, Jr., for writ of mandamus to the judge of the Tenth judicial circuit. Writ granted.

Tyson and Sharpe, JJ., dissenting.

Rudulph & Huddleston, for petitioner.

Cabaniss & Weakley, opposed.

SHARPE J.

Respecting judgments by default obtained in the Jefferson circuit court section 1 of the act regulating practice in that court (Acts 1888-89, p. 797) provides "that the court may for good cause shown allow such judgments so obtained by default to be set aside and demurrer or pleas to be filed on such terms as the court may think just; but no application to set aside such judgment, unless it be for some reversible error committed in the rendition thereof, shall be entertained by the court unless accompanied by an affidavit made by the defendant or his agent or attorney to the effect that in the belief of the affiant the defendant has a lawful defense to such suit." Section 11 of the same statute enacts "that final judgments rendered in said court shall after expiration of thirty days from their rendition, be taken and deemed as completely beyond the control of the court as if the term of said court at which said judgments are rendered had ended at the end of said thirty days: provided, however that nothing herein contained shall prevent parties from applying for new trials or rehearings within said thirty days, or destroy or change the effect of motions for new trials or rehearings when so made, *** or shall prevent the court from the exercise of any power or jurisdiction conferred upon the circuit court touching final judgments." According to the petition here presented the petitioner obtained a judgment by default on September 30, 1899. Within 30 days therefrom, and during the same term the defendant in the judgment entered on the motion docket a motion to set aside that judgment, and on October 21, 1899, an order of court was made purporting to continue the motion "to the next call of the motion docket," which call occurred at the same term, on February 3, 1900, on which last-named day the motion was heard and granted. No affidavit was made or filed relative to that motion until November 9, 1899, at which time an affidavit to facts constituting a lawful defense to the original suit, made by agent of the defendant therein, was filed, and the same was used in support of the motion on the hearing thereof. Mandamus is now sought to require the circuit court to vacate its order purporting to set aside the judgment by default, upon the theory that to so order was ultra vires of the court.

Ordinarily a court's power over its final judgments expires with the term at which such judgments are rendered, and by the terms of the act referred to a like effect...